[Cites 12, Cited by 0]
Bombay High Court
Prajakta Anand Mistri And Others vs Union Of India, Thr. Secretary, ... on 6 May, 2026
Author: Anil S. Kilor
Bench: Anil S. Kilor
1 126-WP-3888-2026.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3888 OF 2026
WITH
CIVIL APPLICATION NO. 1165 OF 2026
IN
WRIT PETITION NO. 3888 OF 2026
PRAJAKTA ANAND MISTRI AND OTHERS
Vs.
UNION OF INDIA, THR. SECR ETARY, DEPARTMENT
OF HOME AFFAIRS (MHA), NEW DELHI AND ORS.
__________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. T. D. Mandlekar, Advocate a/w Mr. S. P. Bargi, Advocate a/w Ms Gayatri Sharma,
Advocate for the Petitioner.
Mr. K. S. Shukul, DSGI for Respondent No.1.
Mr. J. B. Kasat, Advocate for Respondent Nos.3 and 4.
CORAM : ANIL S. KILOR AND RAJ D. WAKODE, JJ.
DATE : 6th MAY, 2026.
CIVIL APPLICATION NO. 1165 OF 2026
For the reasons stated in the application, the
same is allowed.
2. Amendment to be carried out forthwith
3. Civil Application is disposed of.
WRIT PETITION NO. 3888 OF 2026
4. Heard learned counsel for the petitioners.
5. At the outset, learned counsel for the petitioners
seeks leave of this Court to delete petitioner No.11.
6. Permission granted.
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7. Necessary correction in the cause title shall be
carried out forwith.
8. Heard.
9. Issue notice to the respondents, returnable after
Summer Vacation.
10. Mr. K.N. Shukul, learned DSGI waives service of
notice for respondent No.1 and Mr. J.B. Kasat, learned
Advocate waives service of notice for respondent Nos. 3
and 4.
11. The challenge raised in this petition is to the
order dated 23.04.2026 thereby appointing the petitioners as
Enumerates and Supervisors for Census work under the
Census Act, 1948 (for short, "the Act of 1948).
12. Heard learned counsel for the petitioners who
submitted that the subject "Census" is enlisted at Serial
No.69 of the Union List and the Act to provide legal
provisions for said purpose has been enacted by the
Parliament. The petitioner No.1 is an Education Society
which runs the petitioner No.2 unaided Minority School,
having religious minority status. The respondent No.4
Charge Officer called upon Principal of petitioner
No.2/school to submit the information of its employees for
purpose of conducting Census 2027. The petitioner No.2-
Principal was reluctant to supply the information of
employees as the employees of private unaided Minority
School cannot be deputed for Census work. However,
respondent No.4-Charge Officer, threatened for criminal
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action. Therefore, list was given. The petitioners have
received the text message from respondent No.4 on
08.04.2026 and 24.04.2026 and they are required to join the
training for Census purpose. He submitted that all these
letters are contrary to the provisions. He invited our
attention towards Section 4 of the Act of 1948 which reads
as under:-
4. Appointment of census staff.-
(1) The Central Government may appoint a
Census Commissioner to supervise the taking of the
census throughout the area in which the census is
intended to be taken, and [Directors of Census
Operations] to supervise the taking of the census
within the several States.
(2) The State Government may appoint
persons as census-officers [with such designations as
that Government may deem necessary] to take, or
aid in, or supervise the taking of, the census within
any specified local area and such persons, when so
appointed, shall be bound to serve accordingly.
(3) A declaration in writing, signed by any
authority authorised by the State Government in this
behalf, that any person has been duly appointed a
census-officer for any local
area shall be conclusive proof of such appointment.
(4) The State government may delegate to
such authority as it thinks fit the power of
appointing census-officers conferred by sub-section
(2).
[4A. Staff of every local authority to be made
available for taking census.- Every local authority in
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a State shall, when so directed by a written order by
the Central Government or by an authority
appointed by that Government in this behalf, make
available to any Director of Census Operations such
staff as may be necessary for the performance of any
duties in connection with the taking of census.]
13. He also invited our attention towards Section 7 which
reads as under:-
7. Power to call upon certain persons to give
assistance.-
The District Magistrate, or such authority as the
State Government may appoint in this behalf for any
local area, may, by written order which shall have
effect throughout the extent of
his district or of such local area, as the case may be,
call upon -
(a) all owners and occupiers of land, tenure-
holders,
and farmers and assignees of land revenue, or their
agents,
(b) all members of the district, municipal,
panchayat
and other local authorities and officers and servants
of such authorities, and
(c) all officers and members of staff of any
factory, firm or establishment, to give such assistance
as shall be specified in the order towards the taking
of a census of the persons who are, at the time of the
taking of the census, on the lands of such owners,
occupiers, tenure-holders, farmers and assignees, or
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in the premises of factories, firms and other
establishments, or within the areas for which such
local authorities are established, as the case may be,
and the persons to whom an order under this section
is directed shall be bound to obey it and shall, while
acting in pursuance of such order, be deemed to be
public servants within the meaning of the Indian
Penal Code.
14. There is a Charge-officer/respondent No.4 is Census
Officer appointed under Section subsection (2) of Section 4 of the
Act, of 1948. In that view of the matter, respondent No.4 is an
officer appointed by State Government under subsection (2) of
Section 4 of the Act of 1948. He therefore, could not have been
invoked sub section 4 to further appoint the Census Officer.
He also invited our attention towards Rule 3 of the Act of 1948
which reads as under:-
"3. The Central Government may, by notification
in the Official Gazette, declare its intention of
taking census in the whole or any part of the
territories to which this Act extends, whenever it
may consider it necessary or desirable so to do
and thereupon the census shall be taken."
15. He also submitted that under Rule 3 the State Government
and the Union Territory Administration are empowered to
appoint officers as mentioned in the chart table and serial No.3
the officers of the rank of Tahsildars and Additional Tahsildars
can be appointed as a Charge-officers/Additional Charge Officers
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in that sense and the clauses 4 and 5 of the table state about who
are to be appointed as Supervisors and Enumerators.
TABLE
Designation Officers to be
appointed
1. Principal Census District Collectors/
Officer Magistrates/
Commissioners or
administrative heads of
Corporations or any
nominated Officer.
2. District/Additional District Collectors/
district/Deputy Magistrates/ Officers
district/ Sub- assisting District
divisional Collectors/Magistrates/
district/City/Additi Commissioner/ District
onal City Census, Sub-divisional Officers
Officer. or Revenue Divisional
officers.
3. Charge Officer/ Tehsildars/ Additional
Assistant Charge Tehsildars/Mamlatdars
Officer/ Additional / Block Development
Charge Officer and Officer/Chief
Sub-Charge Administrative Officer
Officer. of towns/ Executive
Officers and other
Officers
4. Supervisor Officers generally of a
rank higher than
enumerators or any
person.
5. Enumerator Teachers, Clerks or any
official or any person."
He placed reliance on various decisions of this Court as
well as Apex Court which are as follows:-
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Election Commission of India vs. State Bank of India
Staff Association Local Head Office Unit, Patna and ors. reported
in 1995 Supp (2) SCC 13 wherein the Hon'ble Apex Court while
interpreting the word 'such staff' stated that obviously 'such staff'
can only mean that staff which is under the control of the
President or the concerned Governor and not any staff over
which they do not exercise control. It could mean only that staff
on which the President or the Governor, as the case may be,
would be in a position to exercise disciplinary powers should they
refuse the President's or Governor's directive. Although the
Constitution-makers did not say the Union or the State
Governments but only the President or the Governor, it is obvious
they would have to act consistently with Article 74(1) and
163(1), respectively. Therefore, on a request by the Election
Commission the services of those Government servants who are
appointed to public services and posts under the Central or State
Governments will have to be made available for the purpose of
election. When the Constitution came into force the services of
these officers were readily available. Of course, there were also
local authorities and the services of the employees of the local
authorities were also available. That is why Section 159 of the
1951 Act provides that on request from the Regional
Commissioner or the Chief Electoral Officer of the State, the local
authority of the State shall make available to any Returning Officer
such staff as may be necessary to carry out the duties in
connection with an election."
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16. Similarly Ahmedabad High Court in Letters Patent
Appeal No.244/2019 decided on 05.02.2019 wherein similar
issue was involved and in paragraph No.13 it is specifically
observed that Section 7(c) of the Census act empowers the
District Magistrate to call upon all the officers and members of
the staff of any factory, firm or establishment to render assistance
towards taking of a census of the persons, who are, at the time of
taking of the census, in the premises of factories, firms and other
establishments, as the case may be. It is, therefore, evident that
under Section 7(c) the District Magistrate can take assistance of
the officers and members of staff of any establishment towards
taking the census of persons, who are, at the time of taking of
census, in the premises of the establishment only.
17. It is further observed that Section 7(c) does not
empower the District Magistrate to appoint the employees of the
LIC as the Enumerators or Supervisors for the general census
work. The meaning of the term "establishment" as sought to be
assigned does not carry the case of the appellants any further and
the interpretation of the term establishment by judgments
referred to in para No.2 of the written submissions is not helpful
in any manner to the appellants.
18. Under the Census Act, the work of taking census is
assigned to the Central Government and the State Government
under Section 4. They can take help of the staff of local
authorities under Section 4A. Other than that, the Census Officers
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cannot appoint the employees of the LIC as the Enumerators or
Supervisors to perform the work of taking census as under the
Census Act the Census Officers like, Deputy Municipal
Commissioner, cannot further delegate the power to take census
and there is no power, jurisdiction or authority under the Act to
appoint the employees of the LIC as the Enumerators or
Supervisors. The Citizenship Act has nothing to do with the
Census Act though the powers may be delegated under both the
Acts to the same officers.
19. Similar view is taken by Division Bench of this Court in
Gokul Shrirang Mundhe and others vs. State of Maharashtra and
ors. reported in 2017 SCC OnLine Bom 10083 and Writ Petition
No.10917/2015 with connected petitions decided on 28.09.2016.
In the case of Gokul Shrirang Mundhe and ors. vs. State of
Maharashtra and ors. in paragraph No.15 itself it is specifically
observed that it would not be within the powers of the
Respondents to requisition the teachers of the aided/unaided
Colleges for the purpose of election relying upon Order of 1995
issued by the State Election Commission. As it is held that the
said order is not applicable to the teachers of aided/unaided
Colleges and they do not come within the purview of clause (2)
of the said Order, needless to state the order clauses with regard
to punishment etc. would also not apply to them. It appears that
the elections are already over. As the order of 1995 stands today,
it will have to be held that the services of the teachers of the
Colleges cannot be requisitioned for the election of the
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Panchayats and Municipalities. Similarly, in Writ Petition
No.10917/2015 by considering Section 27 of the Education Act
reads as under:-
"27. Prohibition of deployment of teachers
for non-educational purposes.-
No teacher shall be deployed for any
non-educational purposes other than the decennial
population census, disaster relief duties or duties
relating to elections to the local authority or the
State Legislatures or Parliament, as the came may
be.
It was held that " the mandate of
Section 27 is that no teacher shall be deployed for
any non-educational purposes. The exception to the
said mandate is laid down in Section 27 itself. The
exception will apply when the teachers are
employed for the work of decennial population
census, disaster reliefs duties or duties relating to
elections to the local authority or the State
Legislatures or Parliament, as the came may be. It is
further held that the direction issued by the State
Government to the teachers to work as enumerators
for preparation and updation of the National
Population Register will be contrary to the
provisions of Section 27 of the Education Act, as the
teachers will be deployed for non-educational
purposes. The work will not be covered by the
exception carved out in Section 27."
20. Thus, consistent view of the Apex Court as well as
various High Courts and this Court is that the teachers or non-
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teaching staff of aided or unaided schools cannot be deputed for
the work of Election as well as for the work of census.
21. Heard Mr. K.N. Shukul, learned DSGI for respondent
Nos.1 and 2 and Mr. J.B. Kasat, learned counsel for respondent
No.4.
22. Mr. Kasat, learned counsel for respondent No.4
strongly opposed the said contention and submitted that in view
of Section 4 of the Act of 1948, respondent No.4 has acted upon
and therefore, no illegality is committed.
23. In view of that, at prima-facie stage the
communication issued by respondent No.4-Charge Officer for
taking census work and the notices subsequent thereto appear to
be contrary to the legal provision and therefore, interim prayer in
terms of prayer clause (iii), (v) deserves to be allowed.
24. In view of that interim relief is granted in terms of
prayer clause (iii), (v).
25. Authenticated copy be supplied to the learned counsel
appearing for the parties to act upon.
(RAJ D. WAKODE, J.) (ANIL S. KILOR, J.)
MJ Jadhav
